ADEJO ACHAMA v. THE STATE
(2018)LCN/12281(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of December, 2018
CA/A/199c/A/2017
RATIO
EVIDENCE: WHERE A CONFESSIONAL STATEMENT IN INVOLUNTARY
“If it was a voluntary statement, then it is admitted in evidence. If the contrary is proved, then the statement must be rejected, and marked rejected Section 27(2) of the Evidence Act and OLUWAFEMI ALO vs. THE STATE (2010) LPELR – 3751 (CA); NWACHUKWU vs. STATE (2004) 17 NWLR (Pt. 902) 262; OJEGELE vs. THE STATE (1988) NWLR (Pt. 71) 414 and OLABODE vs. THE STATE (2009) ALL FWLR (Pt. 500) 607. A confessional statement which is free, direct, positive and incontestably voluntary, is enough to convict an accused person KOPA Vs. STATE (1971) 1 ALL NLR 150; DEMO OSENI Vs. THE STATE (2012) LPELR 7833 (SC) and ADEBAYO Vs. STATE (2014) 12 NWLR (Pt. 1422) 613. Once the Court is convinced of the truth of the confessional statement, it can convict – SMART Vs. THE STATE (2016) LPELR 40827 (SC).” PER ABUBAKAR DATTI YAHAYA, J.C.A.
EVIDENCE: WHETHER TRIAL WITHIN TRIAL IS NECESSARY FOR A CONFESSIONAL STATEMENT
“The law is well settled that the only time a trial within trial is conducted in respect of a confessional statement of an accused is where there is allegation of involuntariness of the confessional statement. See Igago v. State (1999) LPELR 1442 (SC), Ibeme v. State (2013) LPELR 20138 (SC), Lasisi v. State (2013) LPELR 20183 (SC).” PER ABUBAKAR DATTI YAHAYA, J.C.A.
EVIDENCE: CONFESSION OF A CO-ACCUSED
“In OZAKI Vs. STATE (1990) 1 NWLR (Pt. 124) 92, the Supreme Court, per Obaseki JSC referred to EVBUOMWAN Vs. C.O.P (1961) WNLR 257 and held that ‘It is settled law by statute and judicial decision that the confessional statement of a co-accused is no evidence against an accused person who has not adopted the statement.'” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES:
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
ADEJO ACHAMA – Appellant(s)
AND
THE STATE – Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Niger State, sitting at Suleja, delivered on the 16th of June 2016, by Hon. Justice Ahmed A. Bima.
The offences for which the appellant and two others were tried for and convicted, are conspiracy, abduction and armed robbery contrary to Sections 97, 274 and 298 of the Penal Code respectively. They were sentenced accordingly. As he was not satisfied with the judgment of the Court, the appellant has appealed to this Court.
The case of the prosecution is that on the 14th of July 2011, the appellant and three others conspired and kidnapped Mrs. Chinwe Ofomah at Suleja, drove her to an unknown destination where they kept her for ten days and meted out inhuman treatment to her. They robbed her of her valuables and released her only after a ransom of about three Million Naira was paid to them.
The prosecution called four witnesses in order to prove its case. The appellant gave evidence in his own defence. At the end, the appellant was convicted and sentenced.
Mr. E. Itula settled the brief of the appellant which was filed on 4th October 2017, but deemed filed on the 18th of April 2018. The three issues suggested for resolution in this appeal by learned counsel are:-
1. Whether there was miscarriage of justice when the trial Court relied on the confessional statement of the appellant for his conviction.
2. Whether the conviction of the appellant based on the extra-judicial statement of a co-accused does not occasion a miscarriage of justice.
3. Whether from the totality of evidence before the Court, the appellant was given right to fair hearing.
The learned Director of Public Prosecution Niger State Mr. M. G Chiroma settled the brief of the respondent which was filed on 17th October 2017 but deemed filed on the 26th September 2018. The lone issue for determination suggested is –
Whether or not considering the totality of the evidence adduced by the prosecution, the prosecution did not prove its case against the appellant beyond reasonable doubt.
This appeal will be resolved on the issues suggested by the appellant.
ISSUE NO. 1
Whether there was miscarriage of justice when the trial Court relied on the confessional statement of the appellant for his conviction.
In his submission on this Issue, learned counsel for the appellant Mr. Itula, submitted that the retraction of a confessional statement by an accused person, on lack of voluntariness in making it, makes it incumbent on the trial Court, to conduct a trial within trial. He argued that the appellant can neither read nor write in English. Even when the trial Court said PW1 knew the appellant as they went to the same secondary school, it was wrong as PW1 did not say he knew the appellant. He said he knew the 1st accused person (Kingsley Akpan) page 75 of the record. Learned counsel therefore argued that since there was no evidence that PW2 went to the same secondary school with the appellant, the appellant could not be said to read nor write English, and the trial Court was thus led astray.
Learned counsel for the appellant submitted that the trial Court did not conduct a trial within trial to ascertain the voluntariness of the confessional statement of the appellant, who was the 2nd accused person.
Since the appellant retracted his statement, the trial Court should have tested the truthfulness and its veracity and whether it was direct and positive by considering other credible evidence available. It ought to have looked into whether there is anything outside it to show that it is true, it is corroborated, the accused person had the opportunity of committing the offence, the confession was possible and was consistent with other facts ascertained and proved at the trial, he submitted.
Counsel argued that the trial Court did not apply the above stated tests and that there was no sufficient evidence linking the appellant’s confession to the offence. He referred to pages 82 – 86, 101, 103 and 104 of the record to state that PW4 clearly informed the Court that she had no encounter with the appellant (2nd accused). On failure to evaluate totality of evidence, counsel referred to AGBOOLA Vs. STATE (2013) ALL FWLR (704) 143, 144; EGWU SUNDAY Vs. STATE (2013) ALL FWLR (Pt. 682) 1814, 1815 and ADEKOYA Vs. STATE (2013) ALL FWLR pages 1645, 1646.
Learned counsel for the appellant also opined that the admission of the confessional statement of the appellant was wrong as he testified to making a statement in Pidgin English and that statement with the translated version to English, should have been tendered, but was not. He submitted wrongly, that when the confessional statement was denied by the appellant, the trial Court should have conducted a trial within trial. This failure to conduct a trial within trial, and an absence of corroborative evidence outside the confession, which would make it probable that the confession was true, as held in HARUNA Vs. A.G. (2011) 49 3 NSQR 1411, have resulted in miscarriage of justice he argued.
He then referred to pages 119, 120 of the record on the arrest of the appellant with a black golf car Registration No. AQ 167 LKJ, as insufficient to make the confession probable. He urged us to hold that since the corroborative evidence is not sufficient, the trial Court was wrong in relying on the confessional statement to convict the appellant. He urged us to resolve the Issue in favour of the appellant.
In his response, the learned DPP, Mr. Chiroma, submitted that the respondent proved its case against the appellant beyond reasonable doubt. He argued, by referring to page 119 of the record, lines 22 to the end of the page, that the trial Court tested the truthfulness and the veracity of exhibit 2, the confessional statement of the appellant, before it acted on it. He submitted that the trial Court also found the confession to be positive, direct and was corroborated by evidence outside the confession page 120, lines 1, 29 of the record. Further, that the evidence of PW1, PW3 and PW4 and Exhibit SD1 and 7 are all corroborative evidence.
On failure to conduct a trial within trial, Mr. Chiroma submitted that it is only when voluntariness of a confessional statement is in issue that a trial within trial would be conducted. When the objection to admissibility is based on the accused person saying he did not make it, the statement is admissible but its weight would be considered ISMA’IL Vs. STATE (2011) 17 NWLR (Pt. 1277) 601 at 625, 626. In the instant appeal he argued, the appellant at page 27 lines 24, 29 and page 78 lines 1, 9, denied making exhibit 2. In such a situation he said, trial within trial does not come into the equation.
Learned counsel for the respondent also submitted that the confessional statement was in English Language and it did not matter whether it was Pidgin English or Queen’s English. It was not in another Language. He referred to page 71 and page 104 line 18, which he said show that the appellant speaks English and testified in English.
There is a bit of a mix up in the submission of learned counsel for the appellant.
There is a difference between retraction of a confessional statement on the ground that it was not made by the accused person and the assertion or objection to its admissibility on the ground that it was not made voluntarily.
When a confessional statement is sought to be tendered in evidence and there is an objection that it was not made voluntarily, then it is incumbent upon the trial Court, to conduct a trial within trial for the purpose of establishing that it was or was not a voluntarily confessional statement. The prosecution begins by calling evidence to prove its assertion. Thereafter, the accused person may call evidence to counter the position. The trial Court will then have to decide.
If it was a voluntary statement, then it is admitted in evidence. If the contrary is proved, then the statement must be rejected, and marked rejected Section 27(2) of the Evidence Act and OLUWAFEMI ALO vs. THE STATE (2010) LPELR – 3751 (CA); NWACHUKWU vs. STATE (2004) 17 NWLR (Pt. 902) 262; OJEGELE vs. THE STATE (1988) NWLR (Pt. 71) 414 and OLABODE vs. THE STATE (2009) ALL FWLR (Pt. 500) 607. A confessional statement which is free, direct, positive and incontestably voluntary, is enough to convict an accused person KOPA Vs. STATE (1971) 1 ALL NLR 150; DEMO OSENI Vs. THE STATE (2012) LPELR 7833 (SC) and ADEBAYO Vs. STATE (2014) 12 NWLR (Pt. 1422) 613. Once the Court is convinced of the truth of the confessional statement, it can convict – SMART Vs. THE STATE (2016) LPELR 40827 (SC).
On the other hand, when an accused person resiles or retracts from a confessional statement which he said he did not make, the confessional statement is admissible in evidence when tendered. So however, that the trial Court would need to test the truthfulness of the confessional statement, by looking for evidence outside the confessional statement that will aid it in ascertaining its veracity. See AKIBU HASSAN Vs. THE STATE (2001) 15 NWLR (Pt. 735) 184; OZANA UBIERHO Vs. THE STATE (2005) 5 NWLR (Pt. 919) 644; MATHEW Vs. THE STATE (2018) 6 NWLR (Pt. 1616) 561 and EYOP Vs. THE STATE (2018) 6 NWLR (Pt. 1615) 273 at 283. The trial judge will however consider the fact of the retraction in the weight he will attach to the statement – OBISI Vs. CHIEF OF NAVAL STAFF (2002) 2 NWLR (Pt. 761) 400; IDOWU Vs. THE STATE (2000) 12 NWLR (Pt. 680) 48; EGBOGHONOME Vs. THE STATE (1993) 7 NWLR (Pt. 306) 383 and IKPO Vs. STATE (2016) LPELR – 40114 (SC).
Some important considerations have been set out to aid a trial Court, in the weight it attaches to a retracted confessional statement, in NWAEBONYI Vs. THE STATE (1994) 5 NWLR (Pt. 343) 138; AWOSIKA Vs. THE STATE (2010) 8 NWLR (Pt. 1198) 49 at 78 and NWEZE Vs. THE STATE (2018) 6 NWLR (Pt. 1615) 197 at 210 G-H. The trial Court would consider whether
(i) there is anything outside it to show that it was true?
(ii) it was corroborated?
(iii) the statements of facts made therein are true as far as they can be tested?
(iv) the defendant had the opportunity of committing the offence?
(v) the confession was possible? and
(vi) it is consistent with other facts which have been proved?
In the instant appeal, PW3, Mr. Agwu, was the investigative officer and at page 77 of the record, he stated that
” 1st accused made all these confessions to me under that these are not the statement they made to PW3…”
Mr. Jegede also informed the Court at page 77, that “They are denying the contents of the statements.”
The above are clear as day light, that the accused persons, including the appellant here, who was the 2nd accused person, retracted their confessional statements. They were not then alleging lack of voluntariness. The statements could and were therefore properly admitted in evidence. A trial within trial was not required at that instance.
The point has been made, in order to buttress the objection to the admissibility of the confessional statements, that the 2nd accused (the appellant) can neither read nor write in English and the pidgin English version was not tendered as well.
The submission of learned counsel for the appellant that the appellant can neither read nor write English, at page 79 of the record and in this appeal, is not borne by the record. What counsel said at page 79 of the record cannot be evidence, as he was not testifying. And that is contrary to the evidence that flowed from the mouth of the appellant himself when he was testifying after affirming, at pages 103 and 104 of the record. At page 103, it is written
“Evidence of 2nd Accused. Christian, affirmed, speaks English…”
This is a factual situation that he speaks English as he testified in English, not in Pidgin English or any other vernacular. And at page 104 of the record, under cross-examination, the appellant said
“I understand English…”
If he speaks English, and his confessional statement was recorded in English, the question of tendering a statement in pidgin English or any other language did not therefore arise. Furthermore, it is of no moment that he thumb-printed the confessional statement. He was not bound to sign his signature. He could thumb-print.
Again at page 104 of the record, the appellant stated that…They alleged that I kidnapped somebody with my vehicle (Exhibit 7). They took me to my house and searched, they could not find anything incriminating. They took me to Minna. There, they started beating me. I don’t know the 1st and 3rd accused persons…”
The appellant did not say that it was the “beating” they ‘started’ on him, that made him to make the confessional statement, so it cannot be an objection to voluntariness of the statement.
The trial Court rightly admitted the confessional statement (exhibit 2) of the appellant.
At page 118 of the record, the trial judge advised himself on the need to test the retracted confessional statement in these words –
“The law does not require the Court to accept the statement of an accused who states that he never made a confession to the police as a matter of consideration to the matter and determine whether, in fact, the accused did not make any confession to the police…”
He examined how the statement would be tested and referred to KIM Vs. STATE (1991) 2 NWLR (Pt. 175) 622 at 635; AREMU Vs. STATE (1991) 7 NWLR (Pt. 201) 1 and AKPAN Vs. THE STATE (1992) 6 NWLR (Pt. 248) 439. He considered the evidence of PW3 and PW4 as they relate to the confessional statement of the appellant. He considered the provision of a dark colour Golf Car No AQ 167 LKJ (exhibit 7) for the kidnap, the keeping of PW4 on a rented apartment and the collection of the ransom money.
The evidence of PW4, the victim of the kidnap, shows that she was kidnapped and driven away in a black Golf car, to an unknown destination. They demanded for ransom money before she could be released.
They robbed her of other valuables. She said the appellant was present where they kept her after the kidnap and when they were demanding for the ransom money. The trial judge found the evidence of PW4 reliable, uncontroverted and unchallenged. He believed her and used the evidence to corroborate the confessional statement of the appellant, which he found to be voluntary true and that he had the opportunity to make it.
It is clear that the trial judge did not rely solely on the confessional statement of the appellant, to convict him. He applied the right tests and arrived at the correct conclusion which we cannot fault.
It is also not correct as submitted by learned counsel for the appellant, that PW1 testified to knowing the 1st accused. It was actually PW2 who said he knew the 1st accused. See pages 104, 105 of the record.
Since the confessional statement of the appellant was found to be voluntary, free, direct, positive and was properly admitted and established, showing that the appellant had the opportunity and had committed the offences, the conviction was proper JIMOH Vs. STATE (2014) 10 NWLR (Pt. 1414) 105.
Issue No. 1 is thus resolved against the appellant and in favour of the respondent.
ISSUE NO. 2
Whether the conviction of the appellant based on the extra-judicial statement of a co-accused does not occasion a miscarriage of justice.
Mr. Itula for the appellant submitted, by referring to Section 29 (2), (4) of the Evidence Act 2011, that the confession of an accused person is not admissible and cannot be used against another co-accused person unless that other adopted it by word or conduct. He placed reliance on OZAKI Vs. STATE (1990) LPELR 2888 (SC) and EVBUOMWAN Vs. C.O.P (1961) WNLR 257. He then argued that it was wrong for the trial judge to rely on the confession of the 1st accused person to convict the appellant (2nd accused). He argued that this happened when the trial judge linked the confession of the 1st accused person where he said that a dark coloured golf car was used in the abduction of PW4, with the confession of the 2nd accused person to be found at pages 11 and 117 of the record. He submitted that as the appellant never adopted the confession of the 1st accused person, it was a miscarriage of justice to use it to convict him, especially as there is no evidence to prove that the black golf car found in possession of the appellant, is the same car that was used for the kidnap.
He referred to BENJAMIN GHOHOR Vs. THE STATE (2013), without stating the law report, ALO Vs. STATE (2015) ALL FWLR (Pt. 775) 262 SC and SOLOLA Vs. THE STATE (2005) ALL FWLR (Pt. 269) 1751. He then went on to repeat the submission he made whilst considering Issue No. 1 on determining the truth of a retracted confessional statement, what to consider and the fact that the 1st accused person “stated through counsel that his confession was made in pidgin English, and was not tendered…” I have already determined the truthfulness of the appellant’s confessional statements whilst resolving Issue No. 1, and the fact that there was no evidence, that the appellant made his statement in pidgin English. PW3 testified that the appellant gave his statement in English and he recorded it in English. He only “translated it to pidgin English for clarity.”
The submission of learned counsel for the appellant from the Bar that the appellant gave his statement in pidgin English cannot override the evidence of PW3 on it.
I agree with the trial judge therefore, that the appellant did not make his statement in pidgin English.
Learned counsel for the respondent argued that Exhibit 2 (the confessional statement of the appellant) and the evidence of PW4 proved all the ingredients of the offence against the appellant, and was thus rightly convicted.
Whilst it is correct that the evidence of an accused person cannot be used against a co-accused unless that co-accused adopted it, it is not correct, that it was the confession of the 1st accused person that was relied upon to convict the appellant. That is misrepresenting the facts. There is no record to base that submission.
At page 121 of the record, the trial judge said
“There is evidence that PW4, Mrs. Chinwe Ofomah was kidnapped by the accused persons on 4/7/2011 at about 10:04 hrs when she was trying to drive out of her residence in Suleja.”
He then made findings on this at page 122 of the record when he stated
“…In her evidence before the Court the PW4 is the victim in this case stated that as she was about to drive away she saw a black golf car coming towards her direction. They stopped, opened their car and rushed to her they dragged her out of the car into the black golf car and released a gun shot into the area They blind folded her yes?. she was asked not to shout. They drove away
When they came out of the car she was… taken inside a room. They tied her hands and two legs. They tied her face for 5 days. They now started to use her phone to call her husband
They told my husband that they are kidnappers and that they are prepared to negotiate for my ransom. They started with N400,000,000
At page 123 of the record, the trial judge found that:-
“The evidence of PW4 in this regard remains uncontroverted and unchallenged as she was never challenged in the witness box as to how she was kidnapped …”
At page 124, the trial judge found that –
“It is on record that before PW4 was released she was made to take an oath that she was going to send the sums of N1,000,000 into an account to be given to her and that if she fails to do so, they would kill her and all members of her family. At the oath taking scene she was made to take off the woollen cap. The three accused persons were there. The 1st accused first took oath. Followed by PW4 and the 2nd and 3rd accused persons.”
The above extracts show that it was the evidence of PW4, the victim of the kidnapping, that was relied upon basically, as it was uncontroverted and unchallenged, by the trial judge, as the corroborative evidence of the confessional statement of the appellant, and the evidence upon which the appellant was convicted. The trial judge was right in his findings, as there is independent evidence apart from the confessional statement of the appellant, which placed him on the scene as one of the kidnappers and as demanding for the ransom money. At page 91 of the record, when PW4 was testifying, she said
“They untied my hands and legs at oath taking. The 1st accused first took the water before I was also made to take. The late accused person Kingsley (1st accused) and Charles Okweri (3rd accused) were there at the time of oath taking. Adejo (2nd accused) was also there.”
These were detailed accounts of the victim believed by the trial judge. It corroborated the confessional statement of the appellant who said that he was the one who provided “a dark colour golf 3 car with Registration No. Kogi AQ 167 LKJ and N120,000 to rent an apartment at Suleja. He stated what happened which could only be to the knowledge of a person who participated in the act. Clearly therefore, these were the pieces of evidence put together by the trial judge, upon which he relied in convicting the appellant. It was not the confessional statement of the 1st accused that was relied upon to convict the appellant by the trial Court.
Even if any consideration was placed on the confessional statement of the 1st accused, it would have been proper, since the appellant, as well as the other accused persons who were tried jointly, had adopted it. This is clearly seen from the evidence of PW3 at page 77 where he said
“…1st accused also confessed… 1st accused made all these confessions to me under the word of caution. When others were brought to confront him, they all owned up to the deal. Confessional statements were obtained from each and every one of them…”
In OZAKI Vs. STATE (1990) 1 NWLR (Pt. 124) 92, the Supreme Court, per Obaseki JSC referred to EVBUOMWAN Vs. C.O.P (1961) WNLR 257 and held that
“It is settled law by statute and judicial decision that the confessional statement of a co-accused is no evidence against an accused person who has not adopted the statement.”
Since the appellant had adopted the confessional statement of the 1st accused person, it could be used against him.
It is also not correct, as submitted by learned counsel for the appellant, that there was no evidence to prove that the black golf car found in possession of the appellant is the same car that was used for the kidnap. The confessional statement of the appellant (page 11 of the record) which has been properly admitted and relied upon by the trial Court, explicitly stated that it was the appellant who provided the dark colour golf 3 car with registration No. Kogi AQ 167 LKJ, for the purpose of committing the offences. This vehicle was found in the possession of one of the accused persons and it was admitted as exhibit 7 pages 86, 87 of the record. So it is the same car that was used for the kidnapping.
21
This was clearly stated by PW4 in her evidence at page 19 of the record, and accepted by the trial judge at pages 49, 50 of the record, a finding which has not been challenged.
The evidence of PW4 has thus corroborated the confessional statement of the appellant. There is thus proof, that the black golf car found in the possession of the appellant is the same car used for the kidnapping.
There has not been any worthwhile point canvassed on behalf of the appellant that has remotely established miscarriage of justice. The extra-judicial statement of the appellant was rightly admitted in evidence. It was tested against other evidence adduced before the Court, and had been found to have been corroborated. The confessional statement of the first accused was not the one relied upon by the trial Court to convict the appellant. It was the evidence of PW3, PW4 and the confessional statement of the appellant that formed the basis of his conviction. The trial judge did everything right. There was no miscarriage of justice in the sense that admissible evidence was rejected, inadmissible evidence was admitted and relied upon or that the Court had shut its eyes to the obvious.
Issue No. 2 is resolved against the appellant and in favour of the respondent.
ISSUE NO. 3
Whether from the totality of evidence before the Court, the appellant was given right to fair hearing.
Learned counsel for the appellant submitted that the trial Court failed to properly evaluate the evidence before it and determine credibility of witnesses. That this failure to consider the case of the accused person amounts to denial of justice. He referred to ADEWALE JOSEPH Vs. STATE 46 NSCQR part 11 791. He argued that the appellant through his counsel, informed the Court that his statement was taken by one Yoruba man Mr. Jegede but that PW3 informed the Court that he took down their statements and interpreted it to pidgin English and that all parties signed their confessions. However, the appellant informed the Court that he thumb-printed his statement. Yet the trial Court did not consider the discrepancies. He criticised the evidence of PW3 and said that the confessional statement was in pidgin English pages 87, 88. He referred to the criteria enumerated in DANIEL Vs. FEDERAL REPUBLIC OF NIGERIA (2014) ALL FWLR (Pt. 735) 345 on what is a fair trial. He concluded by submitting that the trial Court failed to give the appellant a fair treatment in determining his case.
In his response, learned counsel for the respondent submitted that the appellant was represented by counsel throughout the trial and the prosecution witnesses were cross-examined vigorously by the defence counsel. The respondent also gave evidence on his behalf. The appellant had therefore been given fair hearing, he argued, especially as the appellant only denied the commission of the offences without giving any evidence on his behalf worth evaluating. Counsel referred to the evidence of PW4, the victim of the kidnapping which he said was clear and exhibit 2 which was positive and direct in explaining the role of the appellant in committing the crime. The appellant had thus been linked to the crimes, he argued.
There is no way a charge of failure to evaluate the evidence adduced leading to an unfair trial, could be made to stick to the proceedings of the trial Court, as the record shows.
After reviewing the evidence led before him, the trial judge evaluated the evidence and gave probative value to the evidence of PW4. He also found exhibit 2, the confessional statement direct, positive and capable of proving the offences charged. At page 121 of the record, the trial judge held
“There is evidence that, PW4, Mrs. Chime Ofomah was kidnapped by the accused persons on 14/7/2011 at about 10:04hrs when she was trying to drive out of her residence in Suleja.”
This is a finding of fact after due evaluation of the evidence led, for at page 122, the trial judge recapitulated the evidence of PW4 thus –
“In her evidence before the Court, the PW4 i.e. the victim in this case, stated that she saw a black Goff car coming towards her directionThey stopped, opened their car and rushed to her they dragged her out of the car into the black Golf car and released a gun shot in the area…”
The trial judge placed value to her evidence when he assessed and found at page 123, that
“The evidence of PW4 in this regard remains uncontroverted and unchallenged as she was never challenged in the witness box as to how she was kidnapped…”
It is not only the evidence of witnesses that the trial Court evaluated and made findings upon. He did the same with the confessional statements of the accused persons, including the appellant. At page 120 of the record, he found
“In the light of the above, I found the confessions made by the accused persons as positive true and unequivocal.
A careful perusal of those statements shows that the accused persons had the opportunity to commit the offences and they infact agreed to commit the offences It is also true that although the accused persons resiled from their confessional statements, the fact remained that their confessional statements were voluntarily made and I accordingly hold… I have carefully considered all the evidence and I am of the view that the accused persons made the said confessional statements in view of the earlier corroborative evidence outside the confessions.”
The trial judge found at page 122, that
“Clearly this evidence (that of PW4) corroborates the evidence of the 1st 2nd and 3rd accused as stated in their confessional statements. It also shows that the accused persons kidnapped her and took her away to another place.”
There is no evidence that the confessional statement of the appellant was in pidgin English. At page 77, PW3 said he took down the statement in English but translated it to pidgin, only for clarity. There is evidence that the appellant speaks English.
As regards pages 87, 88, the subject of exhibit 3 is not the appellant who was the 2nd accused. The confessional statement (Exhibit 3), was for the 3rd accused person Charles Awodi. See page 85 of the record where the Court in its Ruling admitted the confessional statements.
Further, there is no evidence where counsel for the appellant informed the Court that the confessional statement of the appellant was taken down by one Yoruba man, Mr. Jegede. At page 77 of the record when the confessional statements of the accused persons were tendered, it only transpired that the confessional statement of the 4th accused person (not the appellant), bore the name of Jegede on its face, as the “interpreter”. It was not shown here, that it was Jegede who took the confessional statement of the appellant. At page 79 of the record, the name of Jedede as the one who took down the confessional statement of the appellant, was not stated.
Therein, it was the issue of the 2nd and 3rd accused persons not speaking English, that cropped up and the failure to tender the vernacular version. There is no evidence that the confessional statement was taken down in vernacular. It is only at page 104 of the record when the appellant was being cross-examined, that he said “one Yoruba man took down my statement.” He never stated this when his confessional statement was tendered. He said this well after it was admitted. At any rate, he did not mention ‘Jedede’ as the Yoruba man.
Even if counsel for the appellant had informed the Court that the confessional statement of the appellant was taken down by Jegede, a Yoruba man, that is no evidence, but a submission from the bar. That is not a substitute for evidence which was clearly adduced by PW3, accepted by the trial Court, that it was PW3 that took down the statement in English.
We have gone through the evidence both documentary and oral, led before the trial Court. Every material aspect of the evidence had been assessed and evaluated by the trial Court. Proper findings were made.
The ingredients of the offences with which the accused persons were charged, were set out, considered and applied to the admitted evidence. The right decision was arrived at. The trial Court which saw the witnesses, made use of its advantage, and rightly placed its belief. Having discharged its duty properly and adequately, an appellate Court has no right to interfere OKIEMUTE Vs. STATE (2016) 15 NWLR (Pt. 1535) 297; AWODI Vs. AJAGBE (2015) 3 NWLR (Pt. 1447) 578 and OKEREKE Vs. UMAHI (2016) 11 NWLR (Pt. 1524) 438. The appellant was given adequate opportunity to put his case and he did so. There was no denial of the right to fair hearing. Issue No. 3 is thus resolved against the appellant and in favour of the respondent.
Consequently, this appeal lacks merit in toto. I dismiss it in its entirety. I affirm the judgment of the trial Court delivered on the 16th of June 2016 in Suit No. NSHC/SD/CV/13C/2012.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of previewing in draft the judgment just delivered by my learned brother, A.D. Yahaya, JCA. I am in complete agreement with the resolution of the issues and the conclusion arrived thereat that this appeal is lacking in merit. I agree that this appeal be dismissed in its entirety.
The trial Court in its judgment at pages 107 to 127 of the record of appeal gave adequate consideration of the evidence adduced by the parties before arriving at the conviction and sentence of the appellant. The appellant’s counsel in his brief of argument was canvassing that the trial Court ought to have conducted trial within trial when the appellant resiled from his confessional statement. The law is well settled that the only time a trial within trial is conducted in respect of a confessional statement of an accused is where there is allegation of involuntariness of the confessional statement. See Igago v. State (1999) LPELR 1442 (SC), Ibeme v. State (2013) LPELR 20138 (SC), Lasisi v. State (2013) LPELR 20183 (SC).
Having gone through the arguments of the parties before this Court through their respective briefs, I do not find any merit in this appeal. I also for the same reasons advanced in the lead judgment of my learned brother hold that this appeal is lacking in merit. It is hereby dismissed by me. I abide by the consequential order made in the lead judgment of my learned brother.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances
Fredrick E. Itula For Appellant
AND
J. S Anyandanyi (P.S Ministry of Justice, Niger State) For Respondent
